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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. Prakash, J.
Saranya - Petitioner
Versus
State by Inspector of Police, All Women Police Station Perambalur and District - Respondent
Crl. O.P. No. 21706 of 2016
Decided On : 11-11-2016
Contempt of Courts Act, 1971 - Protection of Children from Sexual Offences Act, 2012 - Section 4 – Indian Penal Code, 1860 - Sections 417, 376, 294(b) and 506(i) - Prohibition of Child Marriage Act, 2006 - Sections 9, 10 and 11 – Criminal Produce Code, 1973 – Sections 91, 311 and 164(5) - Evidence Act - Section 112 – Criminal Trial – Offence s of Cheating and Rape - Sings, recites or utters any obscene song, ballad or words, in or near any public place - Power to summon material witness, or examine person present - Can a criminal Court direct a prosecution witness and her child to subject themselves to DNA profiling along with the accused - Alleged by Prema that Manikandan seduced her by promising to marry her and that she succumbed to his carnal pleasure - It is alleged by her that took her to his house and tied a Thali on her and had sex with her that night - When Manikandans mother and relatives came to know of it, they opposed relationship and drove Prema out of house - Around 9.00 a.m., a panchayat was held in village by the elders of the community, in which, Manikandans relatives suggested that Manikandan should marry his sisters minor daughter "X" as his first wife and could take Prema as his second wife - This proposal was spurned by Prema - Held, It is not paternity of child that is in issue - The issue before this Court is whether Manikandan [A1] has committed an offence under the POCSO Act. The issue of legitimacy would only be incidentally involved - One has to see picture on a larger canvas and if so seen, there can be no doubt that the harm that would befall administration of criminal justice is far greater, if witnesses like "X" and her child cannot be subjected to DNA profiling - The harm that would befall if such a power is not recognised in trial Court will be far greater, because it will be easier for people to prey upon minor girls from downtrodden communities like predators and force them to turn turtle in the witness box - There is, therefore, an eminent need to subject "X" and her child to DNA profiling in order to arrive at truth - Court had to necessarily engage in this tortuous exercise, because, a witness has to be visited with penal consequences on his or her failure to comply with Courts directions to give her blood sample, hair, nail, etc. A recalcitrant witness cannot be allowed to go scot-free - Coercive powers of a Court can be traced - Court has already interpreted the word "thing" appearing in Section 91 Cr.P.C.to mean blood sample, hair, nail, etc - Petition is dismissed.
P.N. Prakash, J.
This petition has been filed to set aside the order dated 18.03.2016 made in Crl.M.P.No. 25 of 2016 in Special S.C.No. 17 of 2015 on the file of the District Judge/Mahila Court, Perambalur.
2. The seminal question that falls for determination in this case is "Can a criminal Court direct a prosecution witness and her child to subject themselves to DNA profiling along with the accused?"
3. Before venturing to answer this question, it is essential to narrate the factual matrix of this case.
4. For the sake of convenience, the parties will be referred to by their name.
5. On the complaint lodged by one Prema, the All Women Police Station, Perambalur, registered a case in Cr.No. 7 of 2015 on 12.03.2015 under Sections 417, 376, 294(b) and 506(i) IPC; Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for brevity "the POCSO Act") and Sections 9, 10 and 11 of Prohibition of Child Marriage Act, 2006 against (1) Manikandan (2) Karuppayee [mother of Manikandan], (3) Anjalai
[sister of Manikandan] and (4) Arumugam [relative of Manikandan].
6. Prema, a 21 year old village belle and Manikandan, aged about 27 years, were neck deep in love some time around 2011 onwards. It is alleged by Prema that Manikandan seduced her by promising to marry her and that she succumbed to his carnal pleasure. It is alleged by her that on 07.07.2014, Manikandan took her to his house and tied a Thali on her and had sex with her that night. When Manikandan's mother and relatives came to know of it, they opposed the relationship and drove Prema out of the house.
7. On 08.07.2014, around 9.00 a.m., a panchayat was held in the village by the elders of the community, in which, Manikandan's relatives suggested that Manikandan should marry his sister's minor daughter "X" as his first wife and could take Prema as his second wife. This proposal was spurned by Prema. Therefore, the panchayat did not make any headway. It is finally alleged by Prema that Manikandan married "X", a minor on 09.03.2015, and refused to marry her. Hence, the FIR.
8. On 17.03.2015, the police took minor "X" and produced her before the Child Welfare Committee comprising Mr. Mohammed Hussain - Chairman, Mrs.Leema Peter - Member and Mr. Mohammed Ilias - Member and recorded her statement. Before the Child Welfare Committee, "X" stated that Manikandan is her maternal uncle and that her family members made her live with Manikandan and she became pregnant, on coming to know of which, she was married to Manikandan on 09.03.2015.
9. From the records collected by the police, it is seen that "X" was examined by Dr. R. Rajeshwari, M.B.B.S, D.G.O., in Siva Hospital on 06.03.2015 and she was found to be four months pregnant. It may be relevant to state here that according to "X", the marriage was solemnised subsequently on 09.03.2015, by which time, the foetus in her womb was four months old.
10. On 17.03.2015, "X" was subjected to medical examination at the Government Hospital, Perambalur, at the instance of the police. The Medical Officer who examined her, has opined that, she is on the family way and is carrying a three month old foetus. Her age was determined as between 15 and 17. Similarly, Prema and Manikandan were also subjected to medical examination and the opinion given by the doctor was that Manikandan is potent.
11. On 19.03.2015, the police produced "X" and Prema before the Judicial Magistrate, Perambalur for recording their statements under Section 164(5) Cr.P.C. Prema narrated the entire facts known to her and they have been disclosed in the FIR to the Magistrate.
12. Since "X" was a minor, the Judicial Magistrate, Perambalur, recorded her statement in-camera and it was also video-graphed. The Magistrate put certain preliminary questions to "X" and after being satisfied that she is capable of understanding and answering, she was asked to narrate what she knew about the case under enquiry, for which, she simply stated "He is my maternal uncle, I do not know anythin
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